Tuesday, October 9, 2012

Federal Regulations - the good news

Like a typical trial lawyer I think that regulations are minimum requirements that a jury should consider but not be bound by in deciding whether reasonable care was being taken for another persons's safety and security. Issuance of federal regulations is a complicated process of notice, comment, response, White House review (by the Office of Information and Regulatory Affairs - OIRA), and, finally, judicial review. A little appreciated consequence of the Presidential election is who staffs OIRA, and who is chosen to become a federal judge. The consequences of both are significant. Cass Sunstein (who recently concluded three years at OIRA before returning to the Harvard Law School faculty) lays out in a New York Review of Books article what it is all about. He begins with a catalog of what the Obama administration has accomplished, then turns to what happens when judges review them. The partisan divide is plain.

Much of the Affordable Care Act cannot go into effect until the Department of Health and Human Services issues rules that actually implement its provisions. Governor Romney has repeatedly said that he would like to repeal the act (and to eliminate or scale back many other regulations). Among other things, recent rules (1) prevent the denial of coverage to people with preexisting health conditions; (2) eliminate annual and lifetime limits on coverage; (3) limit the percentage of premium dollars that can be used for purposes other than health care; and (4) ensure that parents can keep children on their plans until the age of twenty-six.

• to protect food safety, with one rule preventing up to 79,000 cases of salmonella every year;

• to prevent hundreds of deaths and injuries on the highways, among other things by reducing the distance in which trucks are required to be able to come to a full stop;

• to protect workplace safety, among other things by requiring new and clearer hazard warnings;

• to ensure fair dealing and to avoid exploitation of college students, with new rules preventing abuses by for-profit colleges;

• to promote energy efficiency with new standards for refrigerators, clothes washers, clothes dryers, small motors, and more;

• to reduce the health risks associated with smoking, among other things by requiring graphic health warnings on cigarette packages;

• to prevent discrimination on the basis of disability and sexual orientation;

• to reduce air pollution, among other things by ensuring that states are not prevented from meeting federal air quality requirements because of pollution from other states (the “cross-state air pollution rule”).

These regulations, like almost all others, can be challenged in a court, which is typically a federal court of appeals consisting of a three-judge panel. As it turns out, a lot depends on whether the panel consists of Republican or Democratic appointees.

Here is a simple way to test whether political convictions matter in legal disputes over regulations. Ask just two questions. (1) Is the regulation being challenged by industry or instead by a public interest group? (2) How many of the three judges were appointed by a Republican president and how many by a Democratic president? If you know the answers to these two questions, it turns out that you know something important about the likely outcome. Here are three facts:

When the affected industry challenges a rule, Republican appointees are significantly more likely than Democratic appointees to vote to strike down that rule.

When a public interest group challenges a rule, Democratic appointees are significantly more likely than Republican appointees to vote to strike down that rule.

Judges’ likely votes are greatly affected by the positions of their colleagues. Sitting with two fellow Republican appointees, a Republican appointee becomes even more likely to side with industry. Sitting with two Democratic appointees, a Democratic appointee becomes even more likely to agree with a public interest group.